*1 WORSTELL, A. RICHARD ANN WORSTELL WILDA K. v. M. Respondents, DeVINE, Defendant Plaintiffs Appellant. No. 9775. 11, 1959. Submitted Jan. 1959. Decided Feb. 305.
(1) *2 Conklin, Richard B. Falls, appellant. Great for Conklin, Richard B. Falls, argued orally Great appellant. for Browning, William F. Gray, Orville Palls, respond Great for ents.
William F. Browning Gray, and Falls, argued Orville Great orally respondents. for
MR. JUSTICE CASTLES:
This appeal is an from an order denying a motion to set aside sec; judgment a default provisions under the of R.C.M. 93-3905. May 15,
On plaintiffs respondents, below, filed a com- plaint to foreclose a contract property. for the sale of real Prior to the filing complaint, of the appears from an Exhibit at- complaint tached to that a notice given by was respond- appellant, below, ents to the April defendant on 11, 1956, that she was arrears under the contract and unless such indebted- paid ness was her contract was forfeit. The copy summons and complaint appellant was on served May 17, 1956, on 7, 1956, day and on June 21st after process, service of appellant’s default appear. was entered for failure to On June 19, 1956, judgment by default was entered. On June appellant served and filed a notice motion to vacate and set aside the default and With this notice, decree. appellant’s affidavit, counsel filed an forth that the summons complaint were delivered to his office the appellant, his May 21, his client, during 1956; absence on that he did thereafter contact his familiar with client, since he had become the facts of during previous year another case while action pending parties between the same for the same cause; that he process appellant believed that on was served day (cid:127)same that papers office; that were delivered to he did not discover his until mistake as to the date of service after the default was entered.
At appellant the same proposed time the served filed a containing answer counterclaim admissions and denials and alleging another pending action same parties between the for cause; respondents same breached the contract them- by failing warranty selves to execute-a appellant; deed to appellant was induced to enter into the contract the false representations and fraudulent respond- concealments of ; ents and other matters. proposed answer and counterclaim iseeks rescission of contract, return money paid by appellant respondents, improvements reimbursement for by appellant. made
Upon hearing motion to set the default, July aside 11, 1956, respondents any did not file present any affidavits or opposition evidence to the motion. The district court denied September 10, 1956, by the motion on an order from which this appeal is taken-. specification urged.
But one is error It is that the district erred and abused its refusing court discretion to ap- relieve pellant judgment against from the default taken through her inadvertence, mistake, surprise, neglect. or excusable urges appellant The that her counsel’s mistaken belief that day that made the same she papers service was delivered the to neglect. absence was in his excusable office respondents’ argument two-fold. The is First that under is neglect; such a mistake not excusable circumstances and sec- so,' meritorious is not ond, that a defense even shown. statutory for the motion this appeal basis
The from denying motion is 93-3905, R.C.M. sec. in part order * * * may, also, upon the “court that providing such terms as
4 may just, be party legal representative relieve a or his from a judgment, order, proceeding against through other him taken his mistake, inadvertence, surprise, neglect; pro- or excusable vided, application therefor be made time, within reasonable but in no exceeding judgment, case six months after such order, ’’ or proceeding was taken. application of this relief from judg statute to default ments has been many before the court times. The most recent pronouncement 131 being Phelps, in Holen v. Mont. Pac. 624. Certain familiar rules were reviewed Quoting Reynolds Gladys case. Co., from Belle Oil Mont. 332, 340, stated: “However, since, court policy every litigated ‘it is the of the law to have case tried on merits,’ judgments its [Citing default are not favored. justice, should, In furtherance of trial in apply courts cases.] ing given case, statute a above to maintain and exercise that spirit prompted Legislature grant liberal which to them this discretionary power, and, while this court will disturb the action opening only exceptional of a trial court in default cases, ‘no great abuse of discretion the trial in refusing court set to be to [Citing aside default need shown warrant a reversal.’ ” cases.] pronouncements, In view of these we shall examine whether appellant actions of counsel for are such as considered neglect. A review of Montana cases indicates that excusable varying neglect considered shades of court has excusable. Treat, early 250, 253, Nash In the ease of Brantly observed: “While the Chief Justice courts party that a has adhere to the rule who suffered a de- should except upon showing relief ought not substantial fault neglect apparent party for his because the adverse is excuse advantage justly entitled to the which he se- prima has facie *4 default, yet they indulge in by the should not refined cured form, assign importance to matters of which distinctions justice.' in must result a denial of Bach case be deter- might facts; and, motion when the is made upon its own mined
5 leaves the court showing which promptly supported and is might different reach upon minds in doubt or which reasonable in motion. favor of the resolved conclusions, doubt should be ” [Citing cases.] differ in th eir might minds think that reasonable We and therefore resolve of the instant case conclusions attorneys for each a trial on the merits. The doubt in favor of They city. knew of the activities office in the same side live and from the clients, appears their other in behalf of each in the same parties the same record that another case between counsel, Appellant’s action, pending. the same cause of with was, that neglect papers for his he assumed counsel’s excuse Surely assump day. that same such an served on his client were neglect. appears assump It the affidavit tion is from of service was an honest mistake —and one tion the date neglect. to excuse the We hold a sufficient dreamed showing neglect. of excusable See Patterson Patter was made v. (2d) 127, 536; 120 Mont. 179 Madson Petrie son, Pac. v. Tractor Reynolds 106 77 Equipment Co., 382, 1038; & Pac. Mont. 576; 75 243 Gladys Co., 332, Belle Pac. v. Oil Mont. Greene v. Co., 102, 32 79 Brewing 693; Pac. Voelker Montana Mont. v. 40 107 Curry Co., 466, 414; Consol. Min. Mont. Golden Pac. 26, 39 Mont. 101 Pengelly Peeler, Pac. 147. v. holding neglect
For inexcusable see Vadnais East cases v. 42 Copper Mining Mont. 113 Co., 543, Butte Extension Pac. 104 747; Scilley Babcock, 536, 39 677; v. Mont. Pac. Pacific 71 228 Acceptance Corp. McCue, 99, 761; Mont. v. Pac. Robinson 206 Petersen, Pac. 1092. Mont. Bereolos, Eder In Mont. in 1922, the court remarked as
case decided follows: “Fifty-two court, construing decisions of this provisions case, examined, the Code involved have been and it is only worthy note that six of these have the decisions of the district courts aside defaults been reversed, be- insufficiency showing cause excusable neglect. Chambers, They are: Thomas v. 814; *5 6 16 City Butte, 90, 71; Scilley v. of 40 Pac. v.
Chambers Mont. 39 104 Babcock, 677; 536, Mont. Pac. Pearce v. Butte Electric Ry. Co., 563; Willis, Mont. 106 Lovell 46 Mont. 321, Pac. v. 1052, 1914B, 587; 43 L.R.A.,N.S., 930, Ann. Cas. 247], 206 and Robinson Petersen Pac. 1092.” v. Mont. [63 We observe that since the cases we have studied indicate diligence that the promptness moving decisions turn on and in showing to set aside or not a of the default and on whether a meritorious defense is made. impute neglect
This court has been hesitant to of an attor- ney client; permit neglect to his and has been loathe to hearing bar varying on the merits. Whether or not the shades neglect previously disting- of excusable remarked on can be uished, think might we choose to that where reasonable minds neglect, differ in their of conclusions excusable doubt in trial should be resolved favor of a on the merits.
Having neglect held that excusable existed on showing of appellant, slight of we find a abuse discretion the trial judgment. in motion to set aside denying court so, Respondent contends, that even there must be a meritorious shown. the rule. See Holen Phelps, defense This is supra, cases cited therein. showing is rule that the of a meritorious defense It further the supra. Phelps, Holen cannot controverted. proposed prima answer and find that
We examined the We not feel apropos a defense. do it does set facie that matter the merits of the answer since will be better discuss testing of in methods the district handled the standard court demurrer, motion, reply otherwise. district foregoing reasons the order court is re- For the appellant permitted aside and the set to file versed, the default answer. his ANGSTMAN, BOTTOMLY concur.
MR. JUSTICES ADAIR, specially concurring: MR. JUSTICE trial court’s order from in the' reversal I which concur this appeal vacating taken in aside the default taken against and entered defendant. plaintiffs for all
Counsel and counsel for defendant reside Falls, maintain their While the law offices in Great Montana. dignity importance Law, public of the Profession of the point of hardly estimated, yet nothing view can be over is more than engaged practice certain that one in the active law will good find, long run, opinion brothers profession importance far greater general than that of the *6 public large, among lawyers at for it is there his fellow that the every of reputation truly great lawyer foundation the will be discovered to have been laid. Ethics,” Ed., published
In Sharswood’s “Professional 5th by Association, pp. American Bar at to isit said: very great part
“A comfort, of a man’s as well as of his suc Bar, upon his depends professional cess at relations with daily brethren. Writh them is in necessary intercourse, he respect confidence, he must have their he if wishes to sail ** * along diggeth smooth pit,’ says water. ‘Wbioso a man, therein, ‘shall wise fall and he that rolleth a it stone, will upon succeed, return him.’ If he should will gained he have esteem, success with his not the admiration and but the distrust as long and dislike one of his associates as he lives. He should unnecessarily personal difficulty a never with profes a * * * carefully Let him shun most reputation sional brother. practitioner. Let him sharp slips be liberal to the and over opponent can sights so, plain of his wherever he do cases himself behind of his not shelter instructions client. The him right require has no to be client illiberal —and he should than against his brief sooner do what revolts throw his own * * * by honor propriety. is demanded sense what The opinion and confidence of the members of good pro same King’s name on fession, battle, like the the field of is a ‘tower of legitimacy.” it is the title of strength’; ready your “pound not too to demand
Be flesh” even may your law, it be under the due. though represented litigant of a hasty taking the default Be too. advantage an by counsel, hanging, nor tenacious in on to such too your who is in default gained. may Next time it be client once may petitioner for relief. you FALL, Judge, District dis- THE HONORABLE VICTOR H. senting :
Regretfully necessary majority I it to dissent from the find opinion. First, appeal reasons are The twofold. because this appears to squarly me to come within rule laid down in 109.2, Petersen, Robinson and which always followed, it has case, carefully, while has not been never Secondly important, more been reversed court. appears proposed appellant me that the answer filed wholly at the time of the motion to set aside default fails to any original set forth bona fide or valid defense to the action. defense, party The show that he other- “defaulted must has justice pro- determine whether will be wise court cannot Holen retarded aside default.” moted or (2d) 624, 627, Phelps, 131 Mont. and cases therein. cited appellant posses- us that the record before discloses took property May 1, real on about respondents’
sion *7 payments purchase that called for of $135 of under contract complaint respondents’ alleges a default of the The per month. the complaint out as an exhibit to purchase of and sets contract The first default for payments made. was the of the a record 1955 appellant payments 1954, and in made of October month May February, pay- March and and an additional in $135 of month, May. payments No other of in this same $65 of ment premiums paid been have not The insurance made. ever been April 11, by On the required the contract. taxes nor the upon purchaser, notice the served written respondents vendor payments that in either the default demanded default, and of the property of the be restored. The possession cured that attached was complete the list full thereto notice was 1956, suit May 15, made. On been that had. payments the of of the possession recover contract the to foreclose filed was plaintiffs’ the allegations essential the None property. pro are denied complaint above set defendant’s forth separate de four contains proposed answer The posed answer. If pending. now aetion is being another that fenses, first special be raised demurrer ease, should this should be other three affirmative defenses are all answer. not misrepresentations charge upon a on the. based in substance misrepresentations charges of amount These sellers. part agreed defendant to following: pay that too much to place only $10,000 in the first as it was worth property for the $17,000 for; instead as contracted that leaked; the roof portions property that some were in a bad state re pair-; property good “not and tenantable con dition”; the sellers knew all things these misrepre sented them to the purchaser; buyer and that the was entitled rely upon to representations such he, because the buyer, “had no opportunity inspect roofs, etc.”, and that he “had no experience in buying property.” real give
To probative force to the sort of answer set here the defendant my credulity taxes too far. The purchaser has occupied this property May since 1, 1952, and presumably still does. On June years over four possession after taking twenty and some months after the first default in contract, this, and after appearance default of in the case now on appeal court is permit asked to the suit to be tried “on its merits,”' with foregoing as a defense. I do not subscribe to the doc trine that courts should be as blind as usually Justice is de picted as She hold the scales of the law. The law aids the vigilant. R.C.M. 1947, sec. 49-119.
It seems appropriate here quote an observation of Dr. Borchard appearing preface of his Second Edition.of' “* * * Declaratory Judgments on page VIII, where says: he many members of the bench and bar unnaturally acquire- the view that the technicalities profession characterize *8 system, they and that exist for the delectation and benefit
of the priesthood itself; votaries.of the they are inclined to for- get that both bench merely and bar are people, servants of the the better to justice enable the [speed- administration of to be ily] accomplished.”
And it also is that, to be noted intensely prac- “Law is an tical Regardless affair. height of abstraction or idealism from which issues, it must come to earth and walk with men * * * who act and work reality. before it becomes living ‘‘ meaning proves law to be not that which was de creed in the draftsmen, cloisters of professors writers of texts even in opinions appellate [or but that which courts] wrought is in everyday, down-to-earth experience, in effort practical folk apply the law to actualities.” 1 Cal. J.I.C. . 22 3
I would court below and refuse to set another affirm delays long monument to the entirely many of which we have too history of the law. in. LOVELY, MONTANA, OF rel. BRYAN KENNETH
STATE ex v. Hon. ROBERT F. SWAN and Appellant, lator Re BERG, ALBERT SULLIVAN, H. KRUSE OLIVER Respondents. Industrial Accident members Board, No. 9985. Jan. 1959. Decided Feb. 1959. Submitted 853.